Delhi District Court
State vs Rajan @ Kalu on 20 October, 2014
State vs Rajan @ Kalu
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-01, EAST, KARKARDOOMA COURTS, DELHI
State vs. Rajan @ Kalu
FIR No. 134/07
U/sec. 61 Excise Act
PS: Gandhi Nagar
Date of institution of the case: 09.08.2007
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 20.10.2014
Unique I. D. No.02402R0550632007
JUDGMENT
a) Sr. No. of the case : 112/3 b) Date of commission of the offence : 25.04.2007 c) Name of the complainant : Ct. Pradeep Kumar
d) Name of the accused and his parentage : Rajan @ Kalu, S/o Late Shri Ramesh Chand, R/o H. No. 5586, Gali No. 11, Old Seelam Pur, Gandhi Nagar, Delhi
e) Offence complained of or proved : 61-1-14 the Punjab Excise Act
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 20.10.2014 FIR No. 134/07 Page No. 1 of 14 State vs Rajan @ Kalu
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 25.04.2007, Ct. Pradeep along with Ct. Tahjeeb Haider was patrolling in the area and at around 4:00 pm he apprehended the accused from the place Mark "A" in the site plan with illicit liquor. In the meantime, HC Satya Pal also reached the spot. Thereafter, Ct. Pradeep handed over the accused and illicit liquor to him. HC Satya Pal recorded the statement of Ct. Pradeep/Ex.PW1/A, seized the liquor after taking sample in a bottle vide seizure memo Ex. PW4/B, sealed the liquor and sample with the seal of "SP" and filled up the Excise Form. Seal after use was handed over to Ct. Tahjeeb Haider. Thereafter, he prepared the Rukka/PW6/A and sent the tehrir through Ct. Tehjeeb Haider to the Police Station on the basis whereof FIR/Ex. PW2/A was registered. He came back at the spot after registration of the FIR. After registration of FIR/Ex. PW2/A, the IO conducted the personal search of accused vide Ex. PW4/D, arrested him vide arrest memo Ex. PW4/C, released him on his executing a bail bond, prepared the site plan/Ex.PW6/B, recorded the statement of witnesses' u/sec 161 CrPC, deposited the case property in the Malkhana vide Ex. PW3/A. The sample was sent to the Excise Laboratory vide Ex. PW3/B. After completion of the investigation, charge-sheet was filed before the court. FIR No. 134/07 Page No. 2 of 14 State vs Rajan @ Kalu Consequently, the accused was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused as per norms.
Thereafter, the charge u/sec 61/1/14 the Punjab Excise Act, as extended to Delhi, was framed against the accused. The accused pleaded not guilty and claimed trial. With a view to connect the accused with the crime, the prosecution has examined six witnesses.
PW1/Ct. Devender Kumar has deposited the sample of illicit liquor in the Excise Laboratory for examination vide RC No. 31/21 dated 03.05.2007. PW2/ASI Hardwari Singh was the Duty Officer who recorded the FIR/Ex. PW2/A and made the endorsement on the rukka/Ex.PW2/B. PW3/Dushyant Kumar is the Moharar Head Constable (Malkhana). He proved deposit of sealed case property vide entry no. 1641 in Register No. 19/Ex.PW3/A. he also proved the RC No. 31/21 dated 03.05.2007/Ex. PW3/B whereby the sample was sent to the Excise Laboratory for examination.
PW4/Ct. Pradeep Kumar was complainant, who was patrolling in the area along with Ct. Tahjeeb Haider and apprehended the accused with illicit liquor. PW5/Ct. Tehjeeb Haider was patrolling in the area with the complainant Ct. Pradeep and apprehended the accused with illicit liquor. FIR No. 134/07 Page No. 3 of 14 State vs Rajan @ Kalu PW6/ASI Satya Pal is the Investigating Officer and had conducted the investigation of the case. He recorded the statement of Ct. Pradeep/ExPW1/A, prepared the rukka and completed the other procedural formalities as per law (has already been discussed in the preceding paras).
After completion of the prosecution evidence, statement of accused under sec. 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code) was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implications. He stated that case property was planted upon him at the police station. however, he did not lead any evidence in his defence. This court has heard the submissions of the ld. Defence counsel and perused the material on record very carefully.
It is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond a reasonable doubt. Therefore, the prosecution is under legal obligation, to prove each and every ingredient of the offence beyond any reasonable doubt. This general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution can succeed only on discharging its burden of proving the case against the accused. Strongest of suspicion, does not constitute FIR No. 134/07 Page No. 4 of 14 State vs Rajan @ Kalu the proof required. Keeping in view the principle of law laid down in cateena of judgments by the superior courts, now let us see, as to whether the prosecution has been able to prove its case, against the accused, beyond a reasonable doubt. Foremost contention of the Ld. Defence counsel is that a false case has been foisted against him. Ld. Defence counsel has submitted that nothing was recovered from the possession of the accused and in fact he was lifted from outside his house and the case property i.e. the illicit liquor was planted upon him. In support of his contention, he has submitted that as per the version of the prosecution, the complainant, who is a constable, was patrolling in the area where he apprehended the accused with 10 liters cane filled with illicit liquor but no DD Entry regarding the patrolling duty was proved by the prosecution on record. PW4/Complainant Ct. Pradeep Kumar in his chief examination deposed that on 25.04.2007, he along with Ct. Tahjeeb Haider was patrolling in the area and when reached near Gali No. 11, H. No. 5586, Old Seelam Pur, they saw accused Rajan carrying a plastic cane of 10 liters in his right hand. On suspicion, they apprehended him. Lid of the cane was opened and it was found smelling of alcohol.
During the cross examination, he stated that he does remember the DD Entry vide which he left the police station for patrolling duty in the area. PW6/IO HC Satya FIR No. 134/07 Page No. 5 of 14 State vs Rajan @ Kalu Pal also during his cross-examination stated that he does not remember the DD Entry vide which he left the PS for patrolling duty. Issue before the court for consideration is whether it is obligatory for a police official to make an arrival or departure entry in the roznamcha. For deciding the controversy, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules, as applicable to NCT of Delhi, which reads as under:-
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office. However, in the present case no such DD entry is placed and proved on record by the prosecution. The Hon'ble Delhi High Court FIR No. 134/07 Page No. 6 of 14 State vs Rajan @ Kalu while dealing with a similar situation in the case of Rattan Lal vs State 32 (1987) DLT 1=1987 (2) Crimes 29 observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure and arrival of the police officials for patrolling duty casts a shadow of doubt on the genuineness of prosecution version and lends support to the contention of the ld. Defence counsel that the case property was planted upon him. Ld. Defence counsel next contended that Form-29, although allegedly filled up at the spot by the IO/PW6 HC Satya Pal but the same was neither deposited in the Malkhana with the MHC (M) nor the same was sent to the Excise Laboratory along with the sealed sample.
FIR No. 134/07 Page No. 7 of 14 State vs Rajan @ Kalu The Hon'ble Delhi High Court in the case of Balban Singh vs. State (Criminal Appeal No. 921/2005) while dealing with this issue observed as under:-
"....... this Court has explained the importance of ensuring that the FSL form is duly sent with the sample for testing. .....It is normal procedure that when the incriminating articles are seized and are required to be sent to the Central forensic Science laboratory, those articles are immediately sealed and deposited at the Malkhana at the police station till they are taken out and sent to the Laboratory. In the instant case, this was not done. Contemporaneously with seizure and sealing of such articles, impression of seal used on the seal is put on a form, commonly called, the CFSL form. This is so done because at the time of analysis of sealed packets in the laboratory, the analyst concerned is able to tally seal impressions on sealed packets with those appearing on the CFSL form in order to rule out any possibility of tampering of seals on sealed packets after seizure FIR No. 134/07 Page No. 8 of 14 State vs Rajan @ Kalu anywhere or in transit till receipt in laboratory. The importance of the CFSL form thus cannot be overemphasized because this document provides a valuable safeguard to an accused to ensure that no tampering has been done during intervening period. The CFSL form is a document or forwarding note accompanying a sample sent by the police to the Forensic Science Laboratory. Such a form contains the nature of the crime, list of samples being sent for examination, nature of examination required and specimen of the seal/seals affixed on the exhibit besides particulars of the case/ police station." (emphasis supplied) In Radha Kishan, after referring to the Delhi High Court Rules, Part III Chapter 18 B, regarding proper proof of custody of articles, it was held by this Court that the evidence of preparation and dispatch of the FSL form was critical for ensuring that the sealed sample was kept FIR No. 134/07 Page No. 9 of 14 State vs Rajan @ Kalu intact in the police malkhana. An adverse inference would be drawn against the prosecution in the event the FSL form was not proved to have been prepared and dispatched.
PW6/HC Satya Pal had not stated anything about the deposition of Form-29 with the Malkhana Mohrara. There is also no mention of the Form-29 in Register No. 19/Ex. PW3/A. PW3/MHC (M) HC Dushyant Kumar except proving on record the entry made in Register No. 19 has not stated anything else. In Register No. 19 at Serial No. 1641, the seizure memo has been reproduced and it is not mentioned that Form-29 was also deposited with the Malkhana Moharar. By not depositing the Form-29 with the seized sample in the Malkhana and further not sending the same to the Excise Laboratory for examination creates doubt on the prosecution case.
Further, the Investigating Officer had not stated in his deposition before the court that the sample was not tampered with so long as it remained in his custody. In view of the above discussion, possibility of the sample being tampered with cannot altogether be ruled out.
Ld. Defence counsel has next contended that though the alleged recovery was FIR No. 134/07 Page No. 10 of 14 State vs Rajan @ Kalu effected on 25.04.07 yet the sample was sent to the Excise Control Laboratory for examination on 03.05.07. He further submitted that on account of delay of 09 days in sending the sample to the Excise Control Laboratory the possibility of tampering with the same could not be ruled out especially when the seal after use was handed over to an official witness.
There is an unexplained delay of eight days in sending the sample of the recovered liquor to the Excise Control Laboratory, Excise Department, Delhi. Although it is settled law that mere delay in sending the case property to the Laboratory is not fatal to the prosecution case per se, but in the instant case, the prosecution has not been able to explain the reasons for delay which casts a shadow on the bona fides of the investigation.
Lastly, it is contended by the ld. Defence counsel that no independent witness was examined by the prosecution and all the prosecution witnesses were Police officials, who could conveniently level allegations against the accused, without any shred of objective evidence. It is submitted by ld. defence Counsel that in view of the above submission, the accused deserves to be acquitted as the prosecution has failed to prove the guilt of the accused person beyond reasonable doubt. It is pertinent to note that it has been held by the superior courts by various pronouncements that when independent public persons are available at the spot and FIR No. 134/07 Page No. 11 of 14 State vs Rajan @ Kalu they are not joined in the investigation by the investigating agency then unless and until any reasonable and plausible explanation comes from the prosecution as to why the independent public persons was not joined, the case of prosecution should be seen with reasonable circumspection as it would be unsafe to believe the story of the prosecution in absence of the independent public witnesses. In the case titled as Sanspal Singh Vs. State of Delhi 1999 Cr. L.J. 19, the Hon'ble Supreme Court has held that non-joining of public witnesses would not be fatal to the prosecution in the situation where there were no public witnesses available or none was willing to associate in the investigation but would be fatal only when despite the availability of the public witnesses no one was joined in the investigation. Now, it is to be seen in the back drop of the facts of the present case whether the story as put forth by the prosecution can be believed on the touchstone of the law as settled in the aforesaid case of Sanspal Singh. PW4/Ct. Pradeep Kumar during his cross-examination by the ld. Defnce counsel had stated that "We had not asked any public person to join the proceedings....".
IO/PW6 HC Satya Pal during his cross-examination has stated that "..I asked some passersby to join the investigation but none agreed. I did not give written notice to any public person".
In the present case in hand no efforts were made either by the complainant/Ct. FIR No. 134/07 Page No. 12 of 14 State vs Rajan @ Kalu Pradeep Kumar or by the IO to join any public witness even though they were available. No plausible explanation is forthcoming from the side of the prosecution for not joining the independent witnesses. The IO should have made an earnest effort to join an independent public witness. No efforts in this direction have been made by the IO and this, by itself, is a circumstance throwing doubt on the prosecution case.
Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. The testimony of prosecution witnesses does not inspire confidence in view of the above discussion. Hence, it is not safe to rely upon their testimony in the absence of independent corroboration.
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused. Therefore, I give benefit of doubt to the accused and accordingly, the accused Rajan @ Kalu is acquitted of the offence charged with. He be set at liberty, if not required in any other case. Bail Bond u/sec 437A of Cr.P.C furnished. Perused and accepted for a period of six months from today. Original documents, if any, be handed over to the rightful claimant on acknowledgment. FIR No. 134/07 Page No. 13 of 14 State vs Rajan @ Kalu Endorsement, if any, be cancelled.
The case property shall stand confiscated to the State. File be consigned to record room after due compliance. Announced in open Court on 20thth day of October, 2014 (Babita Puniya) MM-01/East/KKDCourts/Delhi 20.10.2014 This judgment contains 14 pages and each page bears my signature.
(Babita Puniya) MM-01/East/KKDCourts/Delhi 20.10.2014 FIR No. 134/07 Page No. 14 of 14